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D. C. TRANSIT SYS. v. UNITED STATES

February 12, 1982

D. C. TRANSIT SYSTEM, INC., Plaintiff,
v.
UNITED STATES of America, Defendant



The opinion of the court was delivered by: SMITH

MEMORANDUM

D.C. Transit System, Inc., (D.C. Transit) brings this action against the United States to quiet title to 3,330 square feet of real property within the District of Columbia. The property in question was part of the Glover-Archbold Parkway (formerly Arizona Avenue), a dedicated street to which the District held title. The property lies between and abuts Lot 811 for 37 feet on the east and Lot 817 for 37 feet on the west. On December 17, 1968, the District of Columbia passed Resolution No. 6876, stating that the Glover-Archbold Parkway was closed. The closing action was recorded by the Surveyor for the District of Columbia on January 13, 1969. D.C. Transit, as owner of Lots 811 and 817, claims that it became the owner of the portion of the former Parkway abutting those lots by operation of law when the Parkway closed. Section 7-401 of the District of Columbia Code, entitled "Closings authorized; dispositions of property," provides:

 
The Council of the District of Columbia is authorized to close any street, road, highway, or alley, ... in the District of Columbia ... the title to the land ... within the public space so closed to revert to the owners of the abutting property....

  The United States claims title to the same land pursuant to an order of the Board of Commissioners of the District of Columbia (the Board). *fn1" The Board's order, dated February 9, 1967, states that title to the closed Parkway "shall revert to the United States of America (National Park Service)." The Board's action in closing the street and granting title to the United States was taken pursuant to a May 1966 agreement between the District and the Park Service, by which the District agreed to transfer its right of way in the former Arizona Avenue to the Park Service, and to take all actions (including closing the street) to do so immediately. The matter is before the Court now on cross-motions for summary judgment. Before the valid title issue is reached, the jurisdictional question of whether D.C. Transit's suit is barred by the statute of limitations, also argued by both parties in their motions for summary judgment, must be resolved. See Knapp v. United States, 636 F.2d 279 (10th Cir. 1980).

 The United States has waived sovereign immunity in civil actions to quiet title to property in which the United States claims an interest, 28 U.S.C. § 2409a (1976), and has vested exclusive original jurisdiction to hear such actions in the district courts, 28 U.S.C. § 1346(f) (1976). The waiver of immunity in section 2409a was expressly conditioned, however, upon the statute of limitations stated therein:

 
Any civil action under this section shall be barred unless it is commenced within twelve years of the date upon which it accrued. Such action shall be deemed to have accrued on the date the plaintiff or his predecessor in interest knew or should have known of the claim of the United States.

 28 U.S.C. § 2409a(f) (1976). The limitation set forth in section 2409a is jurisdictional, e.g., Park County v. United States, 454 F. Supp. 1, 2 (D.Mont.1978), aff'd Park County Association v. United States, 626 F.2d 718 (9th Cir. 1980), and timeliness is therefore a prerequisite to suit under the section. See, e.g., Grosz v. Andrus, 556 F.2d 972, 975 (9th Cir. 1977). Moreover, because it is a condition to suit against the sovereign, the limitation must be strictly construed in favor of the Government. E.g., Bradford v. United States, 651 F.2d 700, 711 (10th Cir. 1981); Stubbs v. United States, 620 F.2d 775, 779 (10th Cir. 1980); Knapp v. United States, 636 F.2d at 282; City and County of Denver v. Bergland, 517 F. Supp. 155, 175 (D.Col.1981). *fn2"

 The complaint in this case was filed on May 19, 1980. If twelve years have passed from the time plaintiff discovered, or should have discovered, the interest of the United States, the plaintiff is out of court. Bradford v. United States, 651 F.2d at 710 (dissenting opinion). Since both parties have moved for summary judgment on this issue, neither may prevail unless, on the basis of the pleadings, depositions, answers to interrogatories, admissions on file and affidavits before it, the Court is convinced that there is no genuine issue as to any material fact, and that one party rather than the other is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). D.C. Transit has stated it had no actual notice of the Park Service's interest until well within the filing period. The United States, although it questions this assertion, has presented no evidence controverting it. The statute and its legislative history clearly state that an action will also be deemed to have accrued at any time plaintiff should have known of the claim of the United States. See 1972 U.S.Code Cong. & Admin.News 4547, 4552-53. *fn3" On the question of whether D.C. Transit had constructive notice of the United States' claim to the property, both parties have submitted statements of facts, admissions, interrogatories, affidavits and legal arguments.

 Section 2409a does not require that the plaintiff have knowledge of the full contours of the Government's claim before the action accrues. Rather, all that is necessary is a reasonable awareness that the Government claims some interest adverse to the plaintiff. United States v. Bedford Associates, 657 F.2d 1300, 1316 & n.16 (2d Cir. 1981); Knapp v. United States, 636 F.2d at 283. Even where the Government's interest in a plaintiff's property is based on a null deed, such governmental interest, even without legal title, constitutes a cloud on plaintiff's title sufficient to render the notice provisions of section 2409a(f) satisfied. See, Knapp v. United States, 636 F.2d at 283; Stubbs v. United States, 620 F.2d at 781. Cf. Peterson v. Morton, 465 F. Supp. 986, 996 (D.Nev.1979). The statute speaks only of disputes to title of real property in which the United States claims an interest. E.g., Hatter v. United States, 402 F. Supp. 1192, 1195 (E.D.Cal.1975). In this case the National Park Service claims rights of reversion to the land within the former Glover-Archbold Parkway as a result of its agreement with the District in May of 1966. The Park Service requested the closing of the Parkway in connection with the development of the Park, and a public hearing was held to consider this closing, as required by section 7-402 of the D.C.Code. A notice was sent to all owners of property abutting areas proposed to be closed, stating that a public hearing would be held on December 8, 1966,

 
to determine the question as to any property rights which may be affected or as to the equity, justice or advisability of the closings ....

 The notice listed Glover-Archbold Parkway as one of the properties proposed to be closed, and continued,

 
As owner of the property abutting on the area proposed to be closed, you are hereby advised of your privilege to be present at said hearing, in person or by representative, for the purpose of stating objections, if any, to the closing adjacent to your land.
 
Maps showing said closings will be exhibited at said hearing, and the Commissioners will consider any suggestions or protests concerning the same which may be offered by any party interested.

 In further fulfillment of the requirements of section 7-402, a similar notice was published in a daily newspaper of general circulation for fourteen days before the ...


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